Discussions with your loved ones about death, funerals and wills are never easy, but making the right legal preparations gives your family certainty. This includes selecting the right executor — the person who manages the deceased’s estate.
If you have been asked to be an executor, or are considering who to nominate in your will, read on for answers to some frequently asked questions about the role.
Who can be the executor?
You can legally appoint anyone over 18 years of age with sufficient mental capacity as the executor. Often people choose their partner, a relative or a close friend of the family.
A well-chosen executor should reduce the likelihood of disputes and legal challenges from those left behind. Sometimes a will-maker (called a testator) chooses a neutral, professional party such as a lawyer or accountant as the executor to minimise the risk of arguments.
Can an executor also be a beneficiary?
Yes, a beneficiary (someone who is entitled to some part of the deceased’s estate) can also be an executor. Appointing a beneficiary as the executor may cause the other beneficiaries to be extra diligent in ensuring the executor conducts their role correctly.
What information does an executor need?
Executors must ascertain information on the assets and liabilities of the estate, obtain taxation advice, financial advice, and the contact details of all beneficiaries. The executor also addresses any preferences of the deceased regarding funeral arrangements and sentimental possessions. If you know that you’ve been appointed as the executor during the testator’s lifetime, you should speak to the testator about their wishes.
Can the executor access bank accounts?
The executor is responsible for dealing with the deceased’s financial assets but they can generally only access the deceased’s bank accounts after the Supreme Court of NSW has granted probate.
Responsibilities and duties of an executor
It is the executor’s responsibility to gather the deceased’s assets, apply them towards payment of any outstanding debts, and distribute the remaining assets (after deducting administrative expenses) to those named as a beneficiary. These duties are not to be taken lightly as the executor can be legally responsible if they do things incorrectly.
The process is quite involved: it can require anything from organising the funeral to validating the Will and representing the estate in any legal claims. The executor is responsible for securing the deceased’s home and property so that it is safe and insured during the transfer period. Being an executor can be time-consuming and at times emotional when dealing with beneficiaries.
During the administration of an estate, executors often have to pay for some expenses out of their own pocket as funds are not yet available. Because of this, executors should keep a detailed record of any expenses they incur so they can claim these back from the estate.
Does an executor have to show accounting to beneficiaries?
Beneficiaries have a right to information as to the way in which the deceased estate is handled depending on their entitlements under the will.
The executor should keep those beneficiaries who are entitled to a share of the estate informed of the full accounting of the estate.
Beneficiaries who are set to receive only specific gifts or money under the will are not normally entitled to the full accounting.
How long does an executor have to distribute the Will?
If an executor hasn’t distributed cash bequests within 12 months from the date of death, then they may need to pay interest to the beneficiaries. However, executors cannot distribute before six months from the date of death in case someone contests the Will. If an executor distributes before six months has expired, they can be legally responsible for personally reimbursing the estate.
Do I have to accept appointment as an executor?
No-one is obliged to accept appointment as an executor. If you agree to be the executor and later change your mind, the role will pass to the next nominated person in the Will (called the substitute). If the will does not nominate a substitute executor, there is a list of people who have priority to become administrators of the Will.
Does the executor get paid for the work they do?
If a will does not explicitly provide for any commission, then the executor may make an application to the Supreme Court of New South Wales to receive one. In these circumstances, the general rule is that the court will not award an executor with payment if they are a beneficiary under the will.
If the will provides for the executor to be paid a commission, they may be paid as set out in the will for time spent as an executor administering the estate.
If the executor needs to engage professional people such as accountants, financial planners and solicitors to assist, payment for these services will be drawn from the estate.
Does the executor of have the final say?
Executors don’t have absolute authority over a will — eligible parties can legally challenge, or ‘contest’, a will. Defending challenges to the estate is part of the executor’s role.
What now?
When you’re grieving, you don’t need to manage legal affairs on your own. We can guide you through every step of the estate administration process, drawing on our extensive experience.
Contact us for a free phone consultation if you have questions about or need any assistance in your role as an executor.
